RIAA Makes Case For Why Parents Should Be Liable For File Sharing Of Kids

from the doesn't-seem-to-fit-with-the-law,-you-know dept

Earlier this month, we pointed out that a judge had told the RIAA it needed to pay up for the legal fees for a woman it wrongly sued over unauthorized music sharing. Not surprisingly, the RIAA has asked the judge to reconsider, but there's also something even more interesting in the request. In the filing, the RIAA lawyers dispute the judge's claim that the RIAA's suit was frivolous and note that if they had been allowed to present more evidence they would have made it clear that the woman being sued should still be responsible for the activity on the account, even though she had nothing to do with the file sharing. The filing argues that, as a parent, she should have been aware of what her child was doing -- and that since the terms of service she agreed to with her ISP placed responsibility on her, then it automatically was her responsibility. On top of that, the filing points out that since she used the same computer, she should have noticed things like the Kazaa icon on the desktop or the annoying popup ads that come with the adware bundled with Kazaa. Of course, the filing doesn't explain how someone who isn't particularly computer savvy is supposed to immediately recognize that pop-up ads = your kid file sharing -- but that seems besides the point. Since it's become increasingly clear that the RIAA is filing these lawsuits based only on an IP address and a prayer (which hasn't been working out so well lately), it's interesting to see the lawyers hitting back and making the case that the owner of an account has liability for the actions of others. It's an argument that's been tried in the past and usually fails, so hopefully the judge will set the RIAA straight again.

Re: Sand Castles

I am a prime example of this. I use lots of different P2P softwares. I don't download music at all.

I download free software(Linux distros, opensource games, etc), game patches, and other free to use/obtain content. I don't like listening to the same songs over and over so I just listen to internet radio. No downloading of music on my part at all.

But if I download something without a copyright notice attached, how do I even know if the content is allegedly protected? Its not the downloader's fault, its the fault of the person who made the content available to download in the first place.

Re: Sand Castles

There is also one other thing to consider: downloading to sample. Most of the people I know, as well as myself, download "pirated" music for the purpose of sampling new music. There is a 99% chance that if we like the music, we will each buy our own copy of the album it came from because that is a physical manifestation of the music a connection to the artists vision and besides, sometimes (although increasingly less nowadays) the "liners" (more apporopriately for CDs, booklets) contain lyrics, which members of the band wrote a particular song and other useful information from an authorized source. Way better than the artist/album/genre (and sometimes not even that) tags that come on most MP3s

Dear Music Industry:
Groups 1 are your friends.
Group 2 are not your enemies.
Group 3 are your next generation of customer, and must not be alienated.
Group 4 are the problem. Unfortunately, you can't get to them without p!ssing off the other three groups. Is it worth it?

The only question is what proportion of us are in which group; the answer depends on whom you are listening to.

Well, of course parents should be held responsible for the actions of their kids. If your kid breaks the neighbor's window, who would accept the excuse, "I didn't break your window - my kid did it. Get the money from him, because I'm not responsible for his actions"?

Fair enough...

Weak legal position

The lawyers' claim that the account holder is liable for the actions of whoever uses the account, as a result of the terms of service, is flawed. The terms of service are a contract between the ISP and the account holder. To argue that the RIAA is an intended 3rd party beneficiary, and should thus be able to use it as grounds for suit, is ludicrous.

If the RIAA were able to go after the ISP, then the ISP could go after the account holder, and the ISP would have a valid claim that the account holder was liable because the ISP and account holder have a contractual relationship.

It flies in the face of contract law to let RIAA go after the account holder because the holder has a contract with someone else.

Now all we have to hope is that the relevant judges understand the pertinent law.

Re: Weak legal position

IANAL and I don't want to make the RIAA's job any easier but it does seem that if a person is in fact illegally distributing music files then they shouldn't be able to get off simply because the uploading of the files wasn't by the person that set up the account with the ISP.

Would that mean that if my wife set up the account I would be free to ignore the ISP's T&Cs, when I use the computer, because I didn't sign the account agreement?

Re: Re: Weak legal position

So.... if someone manages to plant a trojan which opens a backdoor into your system and starts using your system as a distribution point for copyrighted material you are somehow guilty? Get real. I agree if their kid was the one that actually did the sharing then hey the parents have to face the music. But if they can't prove that's what happened then the RIAA can go screw themselves. Hackers and spamers use this trick all the time.

Re: internet = 18+

I don't see anybody thinking of bandwidth theft here. What about the ever-increasing amount of Wireless home networks with nitwits that just plug and play. People find your access point and start sharing...

This is the same if somebody stole your car (to use above analogies)... Should you be liable if your car was speeding but somebody stole it and it was the thief that was driving?

I will assume most people on this site are somewhat computer savvy and thus noticing things like a strange icon or a performance drop may be noticed. This isn't the case for most lay-people... And do you see how many icons are loaded now these days? What's one more beside the "Windows Update", Anti-virus, clock, battery, etc...

I really think the best defense would be "I didn't do it, prove that I did"... If they say your IP was involved just say it must have been hijacked... Burden of proof is on the prosecution. Of course, don't have 10,000 songs/movies on your HD if/when they come to take your stuff for said proof.

Ignorance is not an excuse

Two general principles should probably hold here:
1) Parents are generally responsible for the actions of their children, legally.
2) Ignorance is not an excuse.

Consider point #2 in particular. Remember when this very site had coverage of the trial where the parents of the underage teen who had sex with an adult sued Myspace? Naturally, this site claimed that Myspace wasn't responsible because it's the parents' job to know what their kids are doing on the computer. Guess what? That same logic holds here.

People, the computer is not a babysitter for your kids. You should have a pretty good idea what they're doing on it. Surprise them occasionally. See what they're doing with the thing.

A Potentially Profound Question

How can parents be held responsible for the technological activities of their children if they cannot understand the technological activities of their children?

An excellent question. If in fact parents are responsible for the actions of their children -- which I would contend they are -- then isn't the ability to understand said actions a prerequisite for parenthood?

And most importantly, if a person is incapable of understanding the actions -- particularly the technology-related actions -- of children, should we not then prevent him or her from having children?

I once heard a public service announcement on the radio that referred to parenting as "The Most Important Job You'll Ever Have." My immediate reaction to this was that it also happened to be the only job for which you'll never have to pass a job interview.

Does this seem right? Every baby is a potential serial killer or copyright violator. Why do we insist that everyone -- regardless of qualifications -- has the right to create such monsters?

I suggest that the RIAA immediately patents every aspect of the human genome not already covered by someone else. Then, just as it is illegal for someone to reproduce a recording under copyright, so too would it be illegal for them to reproduce their genes in a child.

Re: A Potentially Profound Question

This is why I beleive we should require a licence to operate a computer... save computer techs alot of problems.. and have something that can be revoked if the operators can't handle the machinery.(and the responsibility that comes with the box)

"she should have been aware of what her child was doing -- and that since the terms of service she agreed to with her ISP placed responsibility on her, then it automatically was her responsibility"

Would the account holder be the person held responsible if someone uses their computer for other illegal activity?

With some of the high profile cases against spammers how would that argument have gone over? I would love to see the public reaction if a lawyer used that argument in court to defend a spammer. "He's not liable, it's the account holders of the computers that actually sent the spam that are the guilty ones. They're the ones that should be on trial, not my client."

Based on the RIAA's claim the spammers aren't liable for their actions since they didn't have an agreement in place with the ISP.

Re:

"Would the account holder be the person held responsible if someone uses their computer for other illegal activity?"

If the "someone" in question is their child, yes. See, there's this notion of "responsible parenting" that states that you're supposed to actually know what your kids are doing. Fortunately, courts usually hold this to be a legal obligation. So if your kid, say, steals your car and hits someone, guess who's resoponsible, legally? Yep, you are. Computer probably shouldn't be substantially different.

RIAA Exec's son

So whatever happened to the RIAA Exce's son who was implicated in file sharing?

Are they going after the Exce because he is 'responsible' for what his kid was doing? Oh, that's right, this one just kind of 'disappeared'.... must be nice to not have to abide by the rules you are trying to force on everyone else.

Well...

Technically, they are right: if you agree to an EULA/ToS (regardless of whether you read it or not), you are responsible for all activity involving the program/service.

BUT, as previously mentioned, a non-tech-savvy person would likely a) not understand an EULA/ToS, b) not know what to do to restrict access, and c) not know the difference if the terms were breached.

This is a clearly case where one could plead ignorance. I find it hard to argue ignorance though: if you buy an item (however technologically advanced), you are expected to learn how to use said item. If you buy a grill and manage to catch your apartment complex on fire, you are responsible, whether you knew you were not using it appropriately or not.

Despite my disagreement with the RIAA on -what- they are doing, I must admit that -how- they are doing it in this instance is logical.

wi-fi anyone?

I guess peer-to-peer should be only performed on free access wi-fi hot-spots?
Would the RIAA be able to track back to you when you use one of these? Or if you use your neighbors un-protected wireless router?

Weak legal position

I am afraid that my previous post has been misunderstood. Let me explain:

1. Parent's are often responsible for the criminal activity of their children, and may be liable civilly for damages as well.

2. Under the terms of service, the account holder is responsible to the ISP for everything that happens using that account.

3. Anyone who uploads or downloads copyrighted material is responsible for their actions.

None of these have any bearing on the weak legal position I pointed out in my previous post. The weakness I was pointing out was RIAA's use of a contract between the account holder and their ISP as grounds for RIAA suing the account holder.

RIAA can freely sue the parents under theory 1.
The ISP can freely sue the account holder under theory 2.
RIAA can freely sue the actual uploader / downloader under theory 3.

What RIAA cannot do is sue the account holder because of a liability created by a contractual relationship between the account holder and the ISP. The account holder does not have that relationship with or duty to RIAA.

Parents Should Be Liable

I'm with some of the other posters here -- if the claim is that the parent should not be liable for the illegal activities of a minor child, that seems not to make a whole lot of sense. As AC notes above, parents are often held legally accountable for the actions of their minor children. We had an arson nearby set by minors, and the parents were civilly responsible for restitution of damages.

The line about "what if the parents don't understand what P2P is" seems a non-starter -- I wouldn't know how to create many types of incendiary devices, but if my child did and used one to start a fire, I don't think my narrow lack of technical knowledge would sway anyone.

That said, there do see to be bigger issues when citing just a single IP, but if the woman in question is conceding it was her child that did the file sharing, I don't see why she wouldn't be legally responsible.

Bad story summary

If you read the linked article there's no mention of the woman's children at all. The RIAA's argument is that the owner of the account is responsible fo rany activity that occurs with that account, regardless of who (child, friend, stranger on the street) performed the actual action.

Really, this is just begging for someone to jack an RIAA adress to hack/dos some .mil site.

You guys have to be kidding me

All these, "what if your kid did this, you'd be liable," arguments are getting on my nerves. If your child stole your car and hit someone, you would NOT be legally responsible. Your child would go to juvenile detention or prison, depending on the circumstances. You, however, would be left with a wrecked car and an empty bedroom. Also, you cannot expect parents to keep up with their children. Even tech-savvy parents cannot possibly keep up with a child who knows how to cover his/her tracks. Further, computers are no longer a luxury in our society. To say that a parent should know everything about one to be eligible to purchase one is preposterous. This would deny people the ability to email, word process, create resumes, track expenses, watch their bank account, purchase items from other areas, research effectively, etc. Last, I'd like to mention the trust issues involved in essentially spying on your child's computer activities. You have to show your children some level of trust. Talk with them, and especially if you don't understand computers very well, ask them what they do on the computer, and have a good enough relationship with them that you can believe them when they tell you.

Re: You guys have to be kidding me

To Matthew who said there is no way kids can be watched 24 hours a day that's BS. You can install a simple program made by Spectorsoft which is what a friend of mine does and it records all keystrokes, IMs, emails, websites visited, Files downloaded, and even takes a picture of the desktop every 10 seconds if he chooses to, then it will email all the logs to an email address he chooses so it cant be deleted. Also the Kid has no way of knowing its on there as it is hidden. Does show as a running app or service. All files are hidden even with show hidden files enabled, AND it requires a combination of 4 different buttons to access the control panel that wont be accidentally simultaneously pressed.

Furthermore you can also have GPS chips placed in their cellphones and cars that will tell you where they are at any time. This is what parent should be doing with their damn rugrats. Personally I dont think they should even have cars or cell phones till they are 18 since kids and old people are the ones that cause 95% of accidents, and cell phones are unnecessary. We didnt need them 30 years ago and we DONT need them now.

Re: Re: You guys have to be kidding me

And your friend's kid only need to boot from a knoppix CD and all the work of your friend to the trash.

The kid would not know it until your friend say samething about her/his online behaviour that the parent should not know. the kid may not know how but he would know is been watched, and only needs a tech savy linux loving friend.

if someone's kid modifies their parents car and makes it "street illegal" and takes it home, the parent drives it around, then the next day the kid takes it out and gets caught for it being "street illegal", should the parent, who knows nothing about cars, be required to take responsibility for the illegality of the car?

Re:

Terrible analogy. How can one drive a modified car and not notice it's modified? "Oh, I guess we always had those blue lights under our car...and that really big spoiler...and the limo tint...and that really big muffler...and I never noticed the button on the steering wheel that says 'Nitrous' or that our car only had an inch of clearance off the ground...Oh well."

A load of horse patooey

The RIAA really sucks and will try to twist words and pull from the left field a load of lame excuses to try to pull over on a judge anything that will lean their way and in their favor.

A parent is responsible for their kids to a point. If you're kid robs a bank or kills someone are they going after the parents? Possible but not likely and only to a point. Kids can't be watched 24x7 but can be checked up on and actions corrected after finding something wrong. Sometimes thats to late. I block sites and ports on my router as soon as I find out. But thats not every day, but then someone posts a link or how-to-get-by and the kids will find this right away.

Also you have the issue on a computer of different login accounts. One for the kid and one for the parent. The parent is going to logon to the computer and may never see any programs that may be on the kids account or pop ups or anything else related to this illegal activity that the kid may be up to. Nothing whats-so-ever to indicate anything. And unless a parent has computer knowledge they aren't even going to know what to look for.

Personally, if it's on the internet, and your able to download it, then it's free free free... If you go down to the local flea market and someone is giving out free cd's of music and you take a few, who's at fault. The RIAA needs to go after the person who is making the stuff free for the taking and not the shoppers.

Responsibility

Um, kids are arrested for their behavior all the time. In a civil case, a jury may find a parent culpable. But a parent never goes to jail for the actions of their kids. The Harris and Klebold parents were sued seven-ways from Sunday in civil court, but the criminal case was closed when their kids died.

Re: A Potentially Profound Question

This is why I beleive we should require a licence to operate a computer... save computer techs alot of problems.. and have something that can be revoked if the operators can't handle the machinery.(and the responsibility that comes with the box)

Umm, NO! Don't you realize that if it weren't for computer illiterate morons, a lot of us "computer techs" and IT guys would be without jobs right now? Computer novices and idiots = job security. If such a "license to own and use a computer" law existed, it would seriously hurt our economy.

The RIAA is full of B$ and that is the bottom line here. This is yet another case that needs to be thrown out of court. It's times like this I wish I was a judge and I got to DENY all of these absurd cases. The RIAA needs to be shot down and shown that they are wasting our tax dollars with stupid, pointless cases that should never go to court. Save our courts for REAL problems, please.

RE:12

Or if you do have 10,000 songs on your computer you need to have the 625+ CDs to prove they are all legal fair use copies.

On topic, While I think parents should be responsible for the actions of the kids, this is one case where I think they shouldn't be. Mostly because the RIAA needs to lose a lot of lawsuits so they stop with the shit and get a new business model.

Re: Nobody's comment

Nobody: Are you really that stupid? First off, you listed several indicators, only ONE of which is illegal. A Nitrous system. And those are internal and only noticable under the hood on most vehicles. You don't put a big button that says, "nitrous" in the car because if you get pulled over and a cop see is it, they'll impound the vehicle. Take, for instance, motorcycle riders who install nitrous. Quite often, the horn button is used to activate it. A parent wouldn't notice something that subtle. Give it a rest. Trying to make someone else look stupid just showed how incredibly ignorant you are.

Re: Re: Nobody's comment

Actually Somebody, depending on where you live, a lot of the things nobody listed can get you into trouble. In some places, there is a mandatory distance the headlights have to be off the ground (the 1" clearance), too dark a tint will get you into trouble in some places (the limo tint), the sound of the car being too loud can get you into trouble (the huge muffler). Granted most of these tickets will just result in a "Fix it" ticket, the cop holds the discretion to make you pay a fine for them.

The owner of the car is ALMOST *ALWAYS* responsible for what happens to the car. If you kid took it and modified it to illegal means, you as the owner are responsible for correcting it. If you kid steals the car and kills someone or even if you LET him drive the car and he kills someone, you aren't legally responsible, but civilly you are....and that is where the money comes into play. All of the **AA cases are civil cases, so up to a point you are financially responsible for what you kid does. Weather it be in a car, to a car, to a house, on a computer you are responsible for you kid.

re # 19

actually yes they could. although mac spoofing is a rapidly growing trend, Joe USER doesn't know how to do this.

All the **AA has to do is know that a certain file was downloaded at a certain IP at a certain time and subpeonea(IANAL might be the wrong word but you know what i mean) the router logs for that period of time and figure out which NIC was used to get said file.

Most routers log both the DHCP client table and the Mac addresses of any wifi connections made.

ok, RIAA makes it case... then what?? where is it gonna stop?? is it just gonna stop on P2P?? hell no! everybody is gonna sue every kids parents for everything under the sun! well... this is how they want America to be. USRIAA!!!!

All I want to know is where the five dollar “albums” are the music industry promised back in the late 70’s with the advent of the compact disc? If they stopped cheating the artists, and made good on the promise of lower prices I’m sure people would be willing to spend the money. It’s funny how big business has sent the message to employees that they don’t matter, but we need to keep the profits coming to the people that do matter.

ISP's should delete logs fairly quickly

Is is a potential headache for ISP's. They should just dump router logs fairly quickly to make it very unlikely for the RIAA to use the logs against them AND the person they claim did the actual sharing.

US- 2, RIAA- 0

Yet another unproven case for the USRIAA to really do some damage to people. I thought they'd be more smart enough to give more valid evidence to that girl that had downloaded X amount of songs with Kazaa to show her crimes.

Instead, they try to bring her mother into it and she obviously had no clue on wtf was going on while her daughter was in the computer.

This shows the government's organized work in cracking down "illegalities" in the internet and the so called "justice" they do in trying to accuse one person who just collects songs in her computer.

Quoted from the summary above:

"Of course, the filing doesn't explain how someone who isn't particularly computer savvy is supposed to immediately recognize that pop-up ads = your kid file sharing -- but that seems besides the point. Since it's become increasingly clear that the RIAA is filing these lawsuits based only on an IP address and a prayer (which hasn't been working out so well lately), it's interesting to see the lawyers hitting back and making the case that the owner of an account has liability for the actions of others"

See? they're using only one bit of evidence- an IP address, not even a person who was spying on that little girl who was downloading songs from a P2P program such as Kazaa. This is the worst way to spend taxpayers money where we could just spend it in fighting for a more decent law where the USRIAA wouldn't penalize people for little incidents such as this.

It's one thing to have a parent keep an eye on their child to download anything illegal, but it's another where the parent doesn't know about what his/her child has in their computer to begin with. Practically it's only the parent's fault if she ignores the child's safety in total.

Putting aside with the meniton that isohunt.com is already in a very big legal case against our government with a similar issue in distribution of both licensed and unlicensed material, which in result will lead to another loss by our government attorneys, this is one of the more unavoidable issues that we the people have to bang heads to and tell both the USRIAA and everyone involved in this issue to get their heads and laws straight.

Otherwise, once Bush is down from the White House, there will be changes in this matter that can affect us all...

r u f******kidding me

r u all dumb??? no ur oarents shouldnt be liale. if ur kid shoots someone u shuld go to jail were u the one holding the gun?????? guns dont ill people, people kill people and if the peoples kid killed someone the gun didnt ill it the kid did????

DEE DEE DEEEEEEE whover says thT HTHEY ARE LYABLE ARE DUMB

did u raise your kid thta waY???? did u say hey son go sownload allll the songs u want for free cu we wont get caught its the dumb ass kids whp do that on their own

IRAA Responsiblity

You know, a single working mother of three, has WAY less responsiblity to moniter the computer use of the kids, when she IS TOTALLY unaware of a potential THREAT, than is the mulit BILLION dollar RIAA members , when they KNOW there is a threat. WHY ARENT THEY PUTTING ADDS ON PRIME TIME TV SO THAT EVERY MOTHER IS AWARE THAT CHILDREN ARE AT RISK OF ASSUMING POPULAR SITES ARE SAFE TO DOWNLOAD. They allow the public, like hard working parents to be UNINFORMED, which is a FAR greater crime than stumbeling into a law suit, while hard working yet oblivios.